Marine observer program now in hands of federal judge

Bycatch accounting in the North Pacific and the costs of the revised marine observer program implemented in 2013 are at the core of a lawsuit now in the hands of an Alaska U.S. District Court judge.

Judge H. Russel Holland heard oral argument from The Boat Company, Fixed Gear Alliance and federal defendants regarding the observer program at an April 16 hearing. At the end of the hearing, Holland said a final decision on the motions for summary judgment would take some time.

The Boat Company, a nonprofit that operates marine tours in Southeast, along with fishing opportunity and conservation education, sued the federal government over the revised at-sea observer program in December 2012. The Fixed Gear Alliance, which primarily represents commercial fishers using longline and pot gear, is also participating as an intervenor.

The revised observer program was implemented by the National Marine Fisheries Service, or NMFS, in 2013. It was intended to increase the statistical reliability of data collected through the observer program, address cost inequality among fishery participants and expand observer coverage to previously unobserved fisheries, such as halibut longline vessels, according to a summary from the agency.

The Boat Company has asserted that the revised program does not provide adequate information about bycatch for federal managers to properly manage the fishery, and it has asked for the program to be overturned.

The disagreement largely revolves around the partial coverage category for vessels in fisheries that do not have a 100 percent observer coverage requirement and are instead split into two pools — vessel and trip selection. Smaller boats, like halibut longliners are generally in the vessel selection pool, meaning that they’re randomly selected for 60 days of coverage at a time. Large boats, including Gulf of Alaska trawlers, are in the trip selection pool, where they must log each fishing trip and are randomly selected for coverage on one trip at a time.

Previously many of the smaller vessels were unobserved.

Counsel for The Boat Company discussed the need for robust bycatch information in the North Pacific during the April 16 hearing.

Boat Company Attorney Colin O’Brien also talked extensively about the need for good bycatch information, and whether the new program was implemented in a way that meets the requirements for that information.

O’Brien said it was “revisionist history” for NMFS to say anything other than observer coverage is used for bycatch monitoring.

“You have to observe if you expect to have anything to report,” he said.

The federal defendants’ lawyer, Ethan Eddy, said that observer data is not the only source of bycatch information, however.

Bycatch is estimated through the catch accounting system, or CAS, and in the Alaska Region, the observer data and other data feeds into the system to gauge bycatch in the fisheries, Eddy said.

Eddy also noted that overall, the agency has more information about bycatch on a wider variety of vessels under the new program. Whether to collect more data from one fleet or data from more vessels is a policy call, he said, and it’s appropriate for the agency to make that decision.

Getting rid of the program, Eddy asserted, would return the program to the days when the program only had information about some vessels.

“They want to reverse all of the gains,” he said.

In The Boat Company response, O’Brien said NMFS failed to consider a key part of the observer program when it was implemented — the effect on trawlers. He also noted that in the Federal Register document regarding the program, the agency wrote that it would improve NMFS’ ability to monitor bycatch.

That, O’Brien said, has not happened. TBC and the federal defendants also discussed program costs at the hearing.

Each year, the agency must first estimate how much funding it will have, then figure out exactly how much observer coverage is possible.

O’Brien cited past lawsuits that have determined that type of funding-first approach is unlawful, although Holland interjected and asked if there was a risk that the program would run out of money half way through the year and provide no data on bycatch if the coverage was determined before funding.

O’Brien said that wasn’t a risk.

Eddy, however, noted that the prior observer program put all of the costs only on observed vessels, and the new program splits it among all fishers, making it more equitable.

Electronic monitoring also discussed

The Fixed Gear Alliance also addressed the role of electronic monitoring in the observer program.

FGA attorney Bruce Weyhrauch said the North Pacific Fishery Management Council and the public had expected electronic monitoring would be an option for some boats when the council approved the new observer program. Most of the FGA members were previously unobserved, and expected to have the option of EM, Weyhrauch said.

But that didn’t come to pass, and the program that was developed can be harmful to fishers using smaller boats, he said.

FGA has asked the court to require the use of EM.

Weyhrauch said that the impacts to small fishing boats in small fishing communities constitutes a violation of the Magnuson-Stevens Act, which specifically protects fishery-dependent communities, and that EM would help reduce the impacts.